Martello

This is an appeal upon a judgment-roll alone. The action was one to recover for damages suffered by plaintiff through the burning of a house owned by defendants, they having rented to plaintiff a room in the dwelling and he having been an occupant of the room at the time of the fire. Plaintiff had judgment and the defendants appeal.

The sole point made by appellants is that the findings do not support the judgment. The complaint charged in part that appellants kept an automobile under the same roof which covered the dwelling and in a place which was a portion of the building, in defiance of the terms of a city ordinance denouncing the keeping of automobiles in such places. The answers of the appellants alleged affirmatively that respondent knew at all times during his occupancy of the room that appellants kept the automobile in the place mentioned. The trial court found this affirmative allegation to be true, and the contention of appellants is that this finding required a judgment in their favor. Respondent contends, however, that he was entitled to judgment because of other findings made by the trial court. These were to the effect that the house was burned by fire “by reason…

I concur. Even if the trial court’s findings should be construed as meaning that defendants’ sole negligence lay in their violation of the city ordinance, nevertheless plaintiff’s knowledge that defendants were violating this police measure would not be a defense to the action. The duty imposed upon defendants by the ordinance to keep their automobile elsewhere than in a part of the rooming-house was not a contractual obligation. It was an obligation imposed upon defendants by a salutary police regulation. The doctrine of the assumption of the risk does not apply. Public policy forbids that the duty which defendants owed to plaintiff to keep their automobile out of the rooming-house should be waived by plaintiff’s mere passive quiescence, even though with knowledge of the infraction of the ordinance. In Adams v. Cumberland Inn Co., 117 Tenn. 470 [ 101 S. W. 428 ], it was held that one who continues to occupy a room in a hotel for six months with knowledge that there are no fire-escapes on the building as required by ordinance does not thereby waive a compliance with the ordinance. The doctrine is there stated as follows: “The plaintiff did not waive the duty which the defendant…